Court to town: Approve housing, but…

A map of one of the past plans for development of “Bennett’s Pond South.”

Sending back a proposal for 389 housing units on 153 acres, Connecticut’s Court of Appeals has told Ridgefield’s Planning and Zoning Commission it must approve Eureka V LLC’s affordable housing plan for the Bennett’s Pond South parcel “under reasonably justified terms and conditions with regard to the watershed portion of the property …”

The appeals court ruled that the lower court trial record did not justify the town’s attempt to ban all development — including sewer lines — in 67 acres of the 153-acre parcel that are part of the Saugatuck River’s watershed, which drains into public drinking water supplies.

But it said the town had justified applying stricter standards to limit development density within the public drinking supply watershed.

The case was considered under the state affordable housing law 8-30g, which sets particularly tough standards for towns to meet in denying plans for housing projects with at 30% of the units “affordable” by state standards.

“Obviously there were two major issues on appeal,” said the commission’s attorney, Thomas Beecher of Collins, Hannafin, Garamella, Jaber & Tuozzolo.

“One was an outright ban on sewer lines running through the Saugatuck land, and the other was an outright ban on development in any portion of the Saugatuck land.

“The court said that under the affordable housing law, there wasn’t substantial enough evidence in the record supporting either ban. But the court did recognize that there was sufficient evidence in the record supporting a lower density of development on the Saugatuck land.”

Eureka had originally proposed a development at 14 units per acre on its 153-acre Bennett’s Pond South parcel. The commission eventually approved a plan developing it at 1.9 units an acre.

Under the affordable housing law, Eureka then submitted a revised plan — that worked out to 2.6 units per acre.

The commission then reconfigured that, eliminating all development in the Saugatuck watershed, and granting some additional development density elsewhere on the property for a density of about two units per acre.

Eureka appealed that, and the plan the court is sending back before the commission is supported by a concept plan showing 389 units on the 153-acre site.

The court ruling read, in part:

“The evidence supported limiting development on the watershed portion of the subject property to a density of not more than one dwelling unit per two acres; it did not support an outright ban.”

While the court found the town’s action reasonable, it did not meet the stricter standards laid out under the state affordable housing law, 8-30g.

“… the defendant’s ultimate choice, clearly made out of an abundance of caution, to ban all development on the watershed area and to increase development on the non-watershed portion of the subject property as an offset may have been a reasonable solution,” the court decision said.

But it added, “… the test we must apply under §8-30g is not whether the defendant’s decision was reasonable, but whether the decision was necessary.”

In remanding the matter back for further consideration, the court’s decision leaves the commission with some room for discretion, but sets a firm legal framework for its decision-making.

“The commission can impose ‘reasonably justified terms and conditions’ in accordance with what the court wrote. It’s not just direction to grant everything the applicant asked for,” said Mr. Beecher, the commission’s attorney.

The ruling became public Monday but doesn’t become “officially released” until next Tuesday, Nov. 27, when it is to be published in the Connecticut Law Journal, triggering a 20-day appeal period — until Dec. 17 — in which a petition for appeal could be filed.

The Planning and Zoning Commission is expected to meet in the next week or so — probably next Tuesday — for an executive session with Mr. Beecher to discuss the court’s ruling.

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Big supporters of affordable housing, like Z28 (Tom), will be thrilled about this.

CMcQuilken

Approved, hundreds of new housing units. Maybe the BOE should wait and see what happens before closing an elementary school.

I could see a scenario of closing a school in 2014 – at a cost of several million dollars – only to have to open it up again a year or two later as these new housing units – filled with young children – come online.

I know there are people who want to close a school. I understand their rationale. But going through with a closing by 2014 could backfire and end up costing money, not saving money.